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Judgment
At the time of the auction--sale the plaintiff was the usufructuary mortgagee in possession, and the land was brought to sale in satisfaction of a
decree upon a prior hypothecation. The equity of redemption was purchased by the first defendant, who at the time was the plaintiff''s paid agent,
and it is found that in the purchase the first defendant acted as plaintiff''s agent and that the plaintiff supplied the money for the purchase. The
plaintiff remained in possession through his tenants. The mortgage being usufructuary, the first defendant could not have disturbed him without
redeeming the mortgage even if he (first defendant), had purchased the equity of redemption on his account. But it is found that he agreed to
execute a conveyance to the plaintiff/allowed plaintiff to take possession of the sale certificate and delivery order and that he was at the time
plaintiff''s agent.
We think the case falls within the principles laid down in Monappa v. Surappa ILR 11 Mad. 234 and Sankunni Nayar v. Narayanan Nambudri
ILR 17 Mad. 282 and that Section 317 Code of Civil Procedure, is not a bar to the suit.
The second appeal is dismissed with costs.